Hunt v. Pollard

• Decision Date: 20 February 1937
• Docket Number: 25977.
• Citation: 190 S.E. 71,55 Ga.App. 423
• Parties: HUNT v. POLLARD.
• Court: Georgia Court of Appeals

190 S.E. 71

55 Ga.App. 423

HUNT v. POLLARD.

No. 25977.

Court of Appeals of Georgia, First Division

February 20, 1937

Rehearing Denied March 10, 1937.

Syllabus by the Court.

1. It was not error for the judge to refuse to charge a written request which was prefaced by the statement that, "It is a sound and wholesome rule of law, humane and conservative of human life," etc., and which request further instructed the jury what acts ordinary care would require under certain circumstances.

2. The judge fully and clearly stated the contentions of the plaintiff as set out in her petition. The charge as a whole contained a very full and clear statement of the law upon the issues raised by the pleadings, and had plaintiff desired a more elaborate statement of her contentions she should have submitted a written request therefor.

3. It is not error for the judge to withdraw from the jury an allegation of negligence contained in the plaintiff's petition which is not supported by any evidence.

4. A charge by the court stating that the answer of the defendant for lack of sufficient information, neither admitted nor denied certain paragraphs, and admitted a certain paragraph calling them by number, and denied the remaining paragraphs of plaintiff's petition, was a correct statement of the contents of defendant's answer, and was not confusing in that the judge, in stating the contentions of plaintiff, had not stated them by numbered paragraphs. Nor was the charge subject to any other assignment of error made.

5. Even conceding that the judge stated the contentions of the defendant more fully than those of the plaintiff, and stated some contentions of the defendant not supported be evidence this is not a good reason for a new trial.

6. The evidence supports the verdict. The jury were amply authorized to find (1) that the plaintiff's husband was killed because of his failure to exercise ordinary care, or (2) that the evidence did not show any negligence on the part of the railroad.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by Mrs. M. L. Hunt against H. D. Pollard, receiver. To review a judgment overruling a motion for new trial after a verdict for defendant, plaintiff brings error.

Affirmed.

Winfield P. Jones, of Atlanta, and Louis H. Foster, of Cairo, for plaintiff in error.

Little Powell, Reid & Goldstein and James K. Rankin, all of Atlanta, for defendant in error.

GUERRY Judge.

This is the second appearance of this case in this court. See Hunt v. Pollard, 51 Ga.App. 948, 181 S.E. 793. Mrs. M. L. Hunt sued Pollard, as receiver of the Central of Georgia Railroad Company, for damages for the alleged negligent homicide of her husband by the operation of one of its trains. For a full statement of the allegations of her petition, reference is made to that case. The jury returned a verdict for the defendant, and the plaintiff prosecutes this writ of error complaining of the overruling of her motion for new trial as amended.

1. In one of the amended grounds of the motion for new trial, the plaintiff excepts to the refusal of the judge to charge the following written request, which is taken in totidem verbis from the opinion of the Supreme Court in the case of Southern Ry. Co. v. Chatman, 124 Ga. 1026, 53 S.E. 692, 695, 6 L.R.A. (N.S.) 283, 4 Ann.Cas. 675: "It is a sound and wholesome rule of law, humane and conservative of human life that, without regard to the question whether the person killed or injured in the particular case was or was not a trespasser or a bare licensee upon the track of the railway company, the company is bound to exercise special care and watchfulness at any point upon its track, where people may be expected upon the track in considerable numbers, as, for example in a city where the population is dense, even between streets where the track has been extensively used for a long time by pedestrians, or where the roadbed is constantly used by pedestrians. * * * At such places the railway company is bound to anticipate the presence of persons on the track, to keep a reasonable lookout for them, to give warning signals such as will apprise them of the danger of an approaching train, and to moderate the speed of its train so as to enable them to escape injury; and a failure of duty in this respect will make the railway company liable to any persons thereby injured, subject, of course to the qualification that his contributory negligence may bar recovery." We think the trial judge rightfully refused to give the request. A refusal to give a written request to charge is not error unless the charge requested is itself correct and perfect. Montford v. State, 144 Ga. 582(3), 87 S.E. 797; Wall v. State, 126 Ga. 86(5), 54 S.E. 815; Dorsey v. State, 2 Ga.App. 228(2), 58 S.E. 477; Brinkley v. State, 58 Ga. 296(2); Flemister v. Central Georgia Power Co., 140 Ga. 511(8a), 79 S.E. 148; McGee v. Young, 132 Ga. 606(5), 64 S.E. 689; Bank of Waynesboro v. Ellison, 162 Ga. 657(1), 134 S.E. 751; Abercrombie v. McLarty, 173 Ga. 414(2), 160 S.E. 611; Landrum v. Rivers, 148 Ga. 774(2), 98 S.E. 477. If it is not so, the trial judge should reject it. It need not be such that, if given, it would amount to reversible error. That part of the requested charge that "it is a sound and wholesome rule of law, humane and conservative of human life," would not have been in harmony with a fair and impartial charge. It was argumentative and at most unnecessary. As was said by the Supreme Court in Central R. v. Thompson, 76 Ga. 770(5a): "In a charge to the jury, an encomium upon the law is unnecessary, if not one-sided, in lauding the wisdom of the law which bears on the company, unless a like encomium be passed upon that which imposes care and diligence upon the passenger." In that case, while the Supreme Court did not hold such a charge reversible error, yet they did expressly disapprove it as being unnecessary. In McGee v. Young, 132 Ga. 606, 64 S.E. 689, supra, it was said: "A new trial will not be granted because of the refusal by the court to give a charge containing an argumentative discussion of the various reasons underlying the rule of law that in all civil cases the jury are bound to take the law from the court." Examples might be multiplied, but we deem it unnecessary. While the judge could have eliminated this objectionable part of the charge, and given the rest to the jury, if it be not subject to further criticism (Campbell v. Miller, 38 Ga. 304, 95 Am.Dec. 389; Ray v. State, 15 Ga. 223[1]), he was not required to do so (Seaboard Air-Line Ry. v. Blackshear, 11 Ga.App. 579, 75 S.E. 902; Sims v. Scheussler, 5 Ga.App. 850, 852, 64 S.E. 99; Rome Insurance Company v. Thomas, 11 Ga.App. 539[3], 75 S.E. 894), and a refusal to give the charge as requested was not error for the reason already pointed out. Counsel points out that the charge is taken in totidem verbis from an opinion of the Supreme Court. We must therefore repeat the oft-decided principle that language employed by a judge of a reviewing court in discussing a case, or in giving reasons for a decision is not always appropriate for use by a trial judge in charging a jury. Flemister v. Central Georgia Power Co., 140 Ga. 511 (8), 79 S.E. 148; Savannah, F. & W. Ry. Co. v. Evans, 115 Ga. 315(2), 41 S.E. 631, 90 Am.St.Rep. 116; Atlanta & W. P. R. Co. v. Hudson, 123 Ga. 108, 51 S.E. 29; Southern Cotton Oil Co. v. Skipper, 125 Ga. 368(9), 54 S.E. 110. As was said in Leonard v. State, 133 Ga. 435, 66 S.E. 251, 252: "It is evident that in an opinion reasons, arguments, and illustrations are often valuable for the purpose of demonstrating the correctness of a legal conclusion reached or of a judgment rendered, while the charge of a trial judge should not be argumentative, or seek to demonstrate the correctness of the positions announced by him, but should instruct the jury as clearly and plainly as practicable in regard to the law applicable to the case before them."

In addition to the above criticism of the requested charge, we might add that it is subject to the further criticism that it amounted to an instruction to the jury as to what ordinary care requires should be done in a particular case, and such a charge has many times been held by this court and the Supreme Court to be erroneous. Where, in a given case, from notice of constant use of its tracks by the general public, the railroad is charged with the duty of anticipating trespassers on the track at such place, that are "'under a duty to take such precautions to prevent injury to such persons * * * as would meet the requirements of ordinary care and diligence.' Louisville & Nashville R. Co. v. Arp, 136 Ga 489, 71 S.E. 867." Hunt v. Pollard, 51 Ga.App. 948, 181 S.E. 793, 795. For the judge to tell the jury that under such circumstances it was the duty of the defendant "to keep a reasonable lookout," "to give warning signals such as will apprise them of an approaching train," and "to moderate the speed of its train so as to enable them to escape injury," was in effect telling them what acts constituted ordinary care, ( Central of Georgia Ry. Co. v. Brown, 138 Ga. 107 [8], 74 S.E. 839), and as such, was erroneous. Atlanta & W. P. Ry. Co. v. Hudson, 123 Ga. 108, 51 S.E. 29; Harris v. Central R. Co., 78 Ga. 525, 536, 3 S.E. 355 and cit. Atlanta & West Point R. Co. v. Jacobs' Pharmacy Co., 135 Ga. 113 (10), 68 S.E. 1039; Central of Georgia Ry. Co. v. Brown, 138 Ga. 107(8), 74 S.E. 839. Furthermore, in so far as the request was correct and applicable, it was fully covered by the general charge. The court charged as follows: "In this connection, gentlemen, I charge you that if, from the locality, the circumstances and the known habits of the public generally, such railway company has reason to...